SUPERIOR COURT OF JUSTICE – ONTARIO
Editor’s note: Corrigendum released October 7, 2013. Original judgment has been corrected with text of corrigendum appended.
COURT FILE NO.: 51465
DATE: 2013/10/04
Parties
RE: Michel Boucher, 160878 Canada Ltd., operating as Commercial Aviation and AIR ACCESS INC. (Plaintiffs)
- and –
Pierre Perras, Perras Gauthier Mongenais Tremblay Filion, Perras Mongenais Filion Grzela Lehoux and Perras Mongenais Filion Lehoux (Defendants)
BEFORE: Justice H. A. Rady
COUNSEL:
O. Sabo, for the plaintiffs
D. Wozniak, for the defendants
HEARD: October 3, 2013
Endorsement
[1] The defendants seek an adjournment of the trial which is currently scheduled for the running list commencing October 15, 2013. The plaintiffs resist the adjournment.
[2] This is a professional negligence claim against the defendant, a lawyer and chartered accountant, arising from advice he gave in connection with a corporate reorganization. Adverse tax consequences are said to have resulted.
[3] The reorganization occurred in 1997. The reassessments occurred in 2002. A statement of claim was issued in August 2006. That action was stayed pending the outcome of tax court proceedings, which were not finalized until February 2010. The parties then agreed to a litigation timetable, which was modified after the case was administratively dismissed (for failure to meet the original timetable) and revived. The case has moved forward in a timely way since then.
[4] Mr. Strickland deposes that it was not until a failed mediation in August 2013 that it became clear to him that the focus of the plaintiffs’ damage claim had changed. In his affidavit sworn September 27, 2013, Mr. Strickland deposes as follows:
A mediation in this action took place on August 20, 2013. Until this time, discussions between counsel has [sic] been focused on the realistic damages stemming directly from the CRA tax re-assessment and the repair.
After the mediation, however, the Plaintiffs’ settlement position dramatically shifted to focus on damages related to business losses which they are alleging are causally connected to the tax re-assessment.
[5] By the time of the mediation, the plaintiffs’ expert report had been in hand for almost two years. However, Mr. Strickland says that Mr. Hoare assumed a causal link between the breach of contract and negligence and the tax reassessment and a subsequent decline in aviation revenues. He says that it was not until a 2012 examination, answers to undertakings in mid-2013 and the mediation that a claim for a loss of business opportunity became apparent.
[6] In the late summer, Mr. Strickland retained an expert to respond to Mr. Hoare and his/her report is anticipated by the end of October (but not until after the trial would have started and presumably finished).
[7] In the meantime, Mr. Strickland wished an opportunity to further discover the personal plaintiff. There was a discussion about the possibility and Mr. Ledroit has been receptive to the request on certain conditions but this motion has intervened and discussions have stalled.
[8] I am advised that the plaintiffs’ liability expert, Mr. Carr, is not available in November for medical reasons. Mr. Sabo made representations in court about the nature of the medical issue and speculated about Mr. Carr’s availability if the trial were delayed but there is no evidence on this point.
[9] Shortly put, the plaintiffs argue that the defendants have known the basis on which damages are claimed since receipt of Mr. Hoare’s report and have simply been dilatory in responding. It is submitted that if the trial is adjourned, it will not be rescheduled probably until 2015. Witness availability becomes an issue; memories are said to fade. The plaintiffs are anxious to proceed and indeed have been busy with trial preparation for weeks.
[10] The defendants do not seek a lengthy adjournment – only until January 2014 although they recognize that trial time is limited.
[11] I recessed the hearing so that I could speak with the trial coordinator to determine if a date could be arranged earlier than 2015. We were able to offer April 7, 2014.
[12] Mr. Sabo was not receptive and reiterated his earlier submissions.
[13] I am guided by rule 52.02 and the principles that guide the court’s exercise of discretion set out in Ariston Realty Corp. v. Elcarim, [2007] 13360 (Ont. S.C.J.).
[14] In the Ariston case, Justice Perell listed the following factors as relevant to the court’s consideration:
(a) The overall objective of a determination of the matter on its substantive merits;
(b) the principles of natural justice;
(c) that justice not only be done but appear to be done;
(d) the particular circumstances of the request for an adjournment and the reasons and justification for the request;
(e) The practical effect or consequences of an adjournment on both substantive an procedural justice;
(f) the competing interests of the parties in advancing or delaying the progress of the litigation;
(g) the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment;
(h) whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;
(i) the need of the administration of justice to orderly process civil proceedings; and
(j) the need of the administration of justice to effectively enforce court orders.
[15] In this case, there can be no doubt that the defendants’ expert report on damages is essential to their case and, in my view, it would be fundamentally unfair to require them to proceed to trial without it. A reasonably brief adjournment is available and I see no non-compensable prejudice to the plaintiffs as a result. This is the first adjournment request and there is no evidence that the defendants are “stalling”. On the contrary – the case has move forward and the parties have actively explored resolution.
[16] I expressed the view during the course of argument that perhaps Mr. Strickland had been late to appreciate the nature of the claim advanced. Having reread the affidavits and exhibits, however, I am satisfied that this is not the case.
[17] I accept Mr. Strickland’s evidence that it was not until the August 2013 mediation and the receipt of undertakings that he was able to understand the case to be met and that the focus of the case had in fact widened. He promptly retained an expert to respond, which in my view, corroborates his explanation.
[18] In my view, the interests of justice demand that the trial be adjourned. The April 7, 2014 date remains available under Monday, October 7, 2013 at 4:00 p.m.
[19] Counsel are to confirm with the trial coordinator if they wish to reserve that date by that time, failing which the matter is remitted to assignment court on October 18, 2013.
[20] I will receive written submissions on any terms sought and/or for costs thrown away from the plaintiffs by October 11 and the defendants may respond by October 18, 2013.
[21] If there is any difficulty arranging a continued examination for discovery, counsel may arrange to speak to me.
“Justice H. A. Rady”
Justice H. A. Rady
Date: October 04, 2013